Despite election, democracy in America is imperiled, says election law expert James Gardner

Release Date: November 20, 2020

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James Gardner head shot.
“In light of these considerations, it seems to me that any return in the United States to the kind of stable, reliable, consensual liberal democracy that prevailed during the last half of the twentieth century is uncertain and, at best, a long way off. ”
James Gardner, Bridget and Thomas Black Professor of Law and a SUNY Distinguished Professor of Law
University at Buffalo School of Law

BUFFALO, N.Y. — Despite record-shattering voter turnout, the future of American liberal democracy remains uncertain and precarious, says University at Buffalo election law expert James Gardner.

This unstable situation, Gardner says, is fueled by three main sources: President Donald Trump and the Republican Party’s unwillingness to concede defeat in the presidential election, growing authoritarianism in states, and a federal judiciary that leans Republican.

Gardner is the Bridget and Thomas Black Professor of Law and a SUNY Distinguished Professor of Law in the UB School of Law. He is one of the nation’s most highly cited legal scholars working in election law.

Will the GOP continue to support Trump?

“When strongman leaders suffer clear and public setbacks to their hold on power, they can fall precipitously. Former supporters, their fear suddenly dispelled, sometimes line up to help kick the declining leader to the curb as he exits the political stage. If the strongman regime is then followed by a liberal democratic one, the political arena may be largely cleansed of authoritarian stimuli, and its prior adherents, the authoritarian signal lost, may thus drift back into the liberal democratic fold – subject, however, to the critically important proviso that the successor regime display some degree of performative success.

“Might events in the U.S. unfold in this way? On one hand, Trump’s support seems to draw upon a coalition of illiberal populists, who deny longstanding American commitments to principles of citizen equality, popular sovereignty, the rule of law and basic human rights, as well as regular Republicans, who retain those commitments but have supported Trump reluctantly out of habitual partisan loyalty. The latter group, possibly the larger of the two, might be inclined to return to the fold if sources of authoritarian stimuli in the political environment now go quiet.

“On the other hand, it is far from clear how quiet those sources will become. As long as he has strength to move his thumbs, Trump is likely to continue constantly to tweet out dog-whistle stimuli to his loyal supporters. He has already threatened to run again in 2024, ensuring he remains salient to Republican Party politics.”

The rise of authoritarianism in states

“Federalism provides opportunities for a political party or movement out of power at the national level to retain a significant base, and to exercise meaningful authority, at the subnational level (further explained in this scholarly paper). Also, many American states over the last few years have taken multiple steps down a globally well-trod path to authoritarianism (this paper written by Gardner offers more detail). As a result, electoral rejection of authoritarianism at the national level may simply relegate it to pockets of dominance in various states. There it will remain protected, regionally popular, and politically salient, ready to re-emerge in national politics should an opportunity arise.”

Federal courts tilt toward Republican Party

“Ever since the final days of the John Adams administration, when Federalists frantically appointed supporters to federal judgeships, politicians have understood that partisan capture of the federal judiciary can offer a stronghold at the national level to a party temporarily turned out of national elective office. For 40 years, Republican Party administrations have pursued this strategy diligently, and the federal courts, including the Supreme Court, now carry a majority of judges who have been vetted carefully for adherence to the party’s commitments. During the run-up to last week’s election, these courts showed a marked tendency to uphold profoundly illiberal vote suppression measures enacted by Republican-controlled state legislatures or Republican election regulators. The Supreme Court itself has taken up a position of federal judicial non-interference in state regulation of electoral processes, a position that enables authoritarian-inclined state officials to continue to insulate themselves from meaningful political competition.”

“In light of these considerations, it seems to me that any return in the United States to the kind of stable, reliable, consensual liberal democracy that prevailed during the last half of the twentieth century is uncertain and, at best, a long way off.”

Parts of this commentary first appeared on the Election Law Blog.

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